Boston v. Garcia et al

Filing 53

ORDER signed by Magistrate Judge Dale A. Drozd on 9/26/12 ORDERING 47 Motion for relief under Federal Rule of Civil Procedure 36(b) and request for a thirty-day extension of time to respond to plaintiff's di scovery requests is GRANTED; Plaintiff's motion for an extension of time to respond to discovery issues is GRANTED IN PART; The parties may conduct discovery until October 9, 2012. Any motions necessary to compel discovery shall be f iled by that date; All pretrial motions, except motions to compel discovery, shall be filed on or before November 30, 2012. Motions shall be briefed in accordance with paragraph 7 of this court's order filed April 20, 2011; Pr etrial conference dates and trial dates will be set, as appropriate, following adjudication of any dispositive motion, or the expiration of time for filing such a motion. Plaintiff's motion for the appointment of counsel 52 is DENIED; and Plaintiff's motion for authorization to exceed the indigent legal copy debt limit 44 is DENIED without prejudice.(Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDRE’ BOSTON,

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Plaintiff,

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vs.

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No. 2: 10-cv-1782 KJM DAD P

V. GARCIA, et al.,

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Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights complaint filed

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pursuant to 42 U.S.C. § 1983. Presently before the court are two motions arising out of the

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discovery in this case. Additionally, plaintiff has filed a motion to exceed the indigent legal copy

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debt limit for a pro se inmate as well as a third motion for the appointment of counsel.

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I. DISCOVERY MOTIONS

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On May 4, 2012, the court issued a discovery and scheduling order. Pursuant to

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that order the parties were given until August 24, 2012 to conduct discovery. All motions to

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compel discovery needed to be filed by that date and all requests for discovery needed to be

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served not later than sixty days prior to August 24, 2012. All pretrial motions, except motions to

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compel discovery needed to be filed on or before November 16, 2012. (See Dkt. No. 42 at p. 6.)

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On July 17, 2012, defendants filed a motion for an extension of time to respond to

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plaintiff’s discovery requests. (See Dkt. No. 47.) Plaintiff served his first request for the

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production of documents on May 24, 2012. Defense counsel states that he was not aware until

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July 10, 2012, when he received a letter from plaintiff that plaintiff had served discovery requests

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on defendants. According to defense counsel, he “determined that the discovery requests were

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present within the case-file, but, due to inadvertance and excusable neglect, were not provided to

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Defense counsel to be calendared.” (See id. at p. 2.)

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Pursuant to the May 4, 2012 order, defendants had forty-five days to respond to
plaintiff’s May 24, 2012 discovery requests. As defendants did not respond within forty-five

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days, the matters in the requests would be deemed admitted. See FED . R. CIV . P. 36(a)(3).

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Defendants move under Federal Rule of Civil Procedure 36(b) for relief which permits the

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admissions to be withdrawn “if it would promote the presentation of the merits of the action and

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if the court is not persuaded that it would prejudice the requesting party in maintaining or

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defending the action on the merits.”

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Defendants are correct that permitting them to withdraw their admissions would

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promote the presentation of the merits of this action. However, it is also worth noting that

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plaintiff only received defendants’ responses to his discovery requests four days prior to the end

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of the discovery period in this case. (See Dkt. No. 50 at p. 2.) In light of the late discovery

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response by defendants, on August 29, 2012, plaintiff requested an extension of time to the

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discovery period. So as to promote the presentation of the merits of this action as well as not

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prejudice the plaintiff due to defendants’ failure to timely file responses to his discovery requests,

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defendants’ motion for an extension of time to respond to plaintiff’s discovery requests (Dkt. No.

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47) will be granted and plaintiff’s motion for an extension of time to the discovery period (Dkt.

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No. 50.) will also be granted in part.1

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II. MOTION TO APPOINT COUNSEL

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On September 10, 2012, plaintiff filed his third request for the appointment of

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counsel. (See Dkt. No. 52.) Plaintiff's previous requests were filed on November 22, 2010 and

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May 23, 2012 and those requests were denied. For the reasons discussed in those orders,

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plaintiff’s third request for a motion to appoint counsel will be denied.

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III. MOTION TO EXCEED INDIGENT COPY DEBT LIMIT

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On June 4, 2012, Plaintiff requested that the court issue an order which allows
him to receive up to a $500 debt limit on his photocopying fees while in prison. (See Dkt. No.

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44.) Plaintiff fears that he may be approaching a $100 debt limit that his prison has in place.

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Nevertheless, plaintiff has been able to pursue this litigation and has filed several documents

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since June 4, 2012. Thus, he has not been prevented from meaningful access to the courts as he

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has not shown actual injury. Cf. Johnson v. Moore, 948 F.2d 517, 521 (“A right of access claim

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other than one alleging inadequate law libraries or alternative sources of legal knowledge must be

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based on actual injury.”) Therefore, plaintiff’s motion will be denied without prejudice at this

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time.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ motion for relief under Federal Rule of Civil Procedure 36(b) and

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request for a thirty-day extension of time to respond to plaintiff’s discovery requests (Dkt. No.

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47.) is GRANTED2;

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Defendant initially requested a thirty-day extension until September 24, 2012 to the
discovery period. Subsequently, he filed an errata sheet (See Dkt. No. 51.) to his motion which
requests a ninety-day extension of time to the discovery period. However, the discovery period
will only be extended until October 9, 2012.

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Defendants have already served plaintiff with their responses to his discovery requests.
(See Dkt. No. 50 at p. 2.)
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2. Plaintiff’s motion for an extension of time to respond to discovery issues is
GRANTED IN PART;

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3. The parties may conduct discovery until October 9, 2012. Any motions
necessary to compel discovery shall be filed by that date;

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4. All pretrial motions, except motions to compel discovery, shall be filed on or

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before November 30, 2012. Motions shall be briefed in accordance with paragraph 7 of this

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court’s order filed April 20, 2011;

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5. Pretrial conference dates and trial dates will be set, as appropriate, following
adjudication of any dispositive motion, or the expiration of time for filing such a motion.

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6. Plaintiff’s motion for the appointment of counsel (Dkt. No. 52.) is DENIED;
and

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7. Plaintiff’s motion for authorization to exceed the indigent legal copy debt limit

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(Dkt. No. 44.) is DENIED without prejudice.

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DATED: September 26, 2012.

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